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Paper* of tfce B. g. S^afccupcare §>octctp, Jfto. i. 



ECCLESIASTICAL LAW 



Hiimlct :— The Burial of o 



By R. S. GUERNSEY 



Reati Bekoke the Society Tune qth, 1885 



[E SHAKESPEARE SOCIETY OF NEW YORK. 
.rentano Bros., New York, Washington and Chicago.) 






OFFICERS 



THE SHAKESPEARE SOCIETY 



OF NEW 


YORK. 


(1885.) 


APPLETON MORGAN, .. 


- President. 


R. S. GUERNSEY, 


1ST Vice-Prest. 


C. C. MARBLE, 


- Secretary. 


JAMES E. REYNOLDS, 


Treasurer. 


ALBERT R. PREY, 


Librarian. 



N 



. \ (r ^ 



The Shakespeare Society of New York, 



INCORPORATED APRIL 20, 1885. 




Co promote tlje fcnomIrtia;e anti sta'ap of tlje SlSEorfcs 

of SlSSm. Shakespeare, ana tl)c I£>I)akcsperean 

anto (Klt^ahetpan SDraraa. 



IN EXECUTIVE COMMITTEE, 

JUNE 15, 1885. 

Resolved, That in order that the papers printed un- 
der authority of this Society may be of the highest 
character, and of value from all standpoints, the Socie- 
ty does not stand pledged as responsible for the opin- 
ions expressed or conclusions arrived at in the said 
papers, but considers itself only responsible in so far as 
it certifies by its Imprimatur that it considers them as 
original contributions to Shakespearean study, and as 
showing upon their face care, labor and research. 



Papere of tlje 13. p. S^aturspeare £>ocietp, JRto. X. 



ECCLESIASTICAL LAW 



^Jjt&tttXcl ♦ — The Burial of Ophelia. 



By R. S. GUERNSEY. 



Read Before the Society June 9TH, 1885. 



V New York : 

THE SHAKESPEARE SOCIETY OF NEW YORK. 

(Brentano Bros., New York, Washington and Chicago.) 
1885. 






Copyright, 1885. 
By the Shakespeare Society of New York. 



IZ- 






ECCLESIASTICAL LAW 

IN 

HAMLET :-The Burial of Ophelia. 



It would seem at this late day that all that 
could be said about the play of Hamlet has 
been said and often repeated. I now claim 
the honor of being the first discoverer and 
announcer of the fact that in Hamlet can be 
found allusions and statements showing the 
most thorough and complete knowledge of the 
canon and statute law of England, relating to 
the burial of suicides that has ever been writ- 
ten. 

In pointing out the law in Hamlet, the 
dialogue in the grave-diggers' scene is always 
discussed by writers, but even in that they do 
not any of them note all the law that is 
in it, and I will now show that it is not con- 
fined entirely to the parallels in the famous 
case of Hales v. Petit, from which some of the 
arguments are unquestionably taken. 



6 ECCLESIASTICAL LAW 

No law writer has yet stated the English 
law relating to suicides so completely as is 
done in Hamlet. I have mentioned this fact 
in my recently published " History of the 
Penal Laws against Suicides," but as all the 
parallels and allusions contained in the play 
were not there pointed out, I will now attempt 
to fully give them. 

Shakespeare has accurately stated the laws 
of the Church and of the Statutes in England, 
at the time he wrote, and not the laws of Den- 
mark, in Hamlet's time. 

Hamlet, King of Denmark, lived about A. 
D. 700, and Christianity was not introduced 
in Denmark until about A. D. 827, by Harold. 
So the laws of the Christian Church of Eng- 
land were referred to, and not the laws of 
Denmark, in the time of Shakespeare. 

The established Church, in Denmark, is 
Lutheran, and has been such since 1536. 

The plot of Hamlet is derived from "Saxo 
Grammaticus' History of Denmark, and was 
used in novels before Shakespeare's time. It 
was first used as a play in 1589, said to have 



IN HAMLET. 7 

been written by Shakespeare and Marlowe, 
but no copy of it as then represented is now 
known. It is mentioned by contemporary 
writers. That which is now known as Shakes- 
peare's Hamlet was written about 1597, and 
published about 1600. It was entered in 
Stationer's Hall for copyright by James 
Roberts, on July 26th, 1602, under the title of 
" The Revenge of Hamlett, Prince of Den- 
marke." The edition published in 1603, like 
those previously printed, is one that I partic- 
ularly call attention to as not containing any 
of the fine descriptive points relating to the 
death and burial of Ophelia. It was little 
more than merely alluded to.* The grave- 
diggers' dialogue and the burial of Ophelia, 
in the 5th Act, was afterwards revised and 
inserted in the edition of 1604, and is the 
same as is now in common use. 

The entire play was so revised and altered 
to such an extent as to make the edition of 
1604 a rewritten play. 

Queen Elizabeth died March 23, 1603, so 

*See post, pages 13 & 47. 



8 ECCLESIASTICAL LAW 

the Hamlet of to-day was written under the 
reign of King James I. In this connection 
it is important to note the effect that this 
might have had upon the forms then used by 
the English Church in burials, and might 
have caused a change in this description of 
the burial of Ophelia. 

The three kinds of burials given suicides in 
the church yard are shown — one by the grave- 
digger, as was customary in some parts of 
England and Wales, where the grave was " out 
of the sanctuary" and not " straight," that is, 
east and west, and another was by Christian 
burial by the priest, when it was in the parish 
church-yard, and the other was by the coroner 
when not at cross roads, marked by a stake 
where stones, &c, were thrown at it. Black- 
stone only mentions the burial of suicides at 
cross roads, and law students are led to be- 
lieve that the law was the same over all Eng- 
land and Wales in that particular. It was only 
a legal custom and did not prevail generally. 

The case of the suicide of Sir James Hales, 
and the legal effect thereof, is the first one 



IN HAMLET. 9 

reported as adjudicated upon by the Courts, 
as to the question of forfeiture of the property 
of a suicide as a felony (Hales v. Petit 
Plowden, 253). Sir James Hales was a Judge 
of Common Pleas and a Protestant. In the 
reign of Queen Mary he was removed and 
imprisoned in the Fleet and other places, and 
was otherwise persecuted, so that he became 
melancholy. He attempted suicide by stab- 
bing himself, but failed to accomplish his 
design. He was released from close confine- 
ment, and seeing the cruel persecutions of 
other Protestants by the Queen, and fearing 
that he was about to be again seized, he at 
last drowned himself. The coroner's jury 
(being Roman Catholic) very unjustly found 
that he was sane at the time, and therefore his 
personal estate, which was valuable, was for- 
feited to the Queen. The case of Hales v. 
Petit arose out of this. 

The parallel between the arguments pre- 
sented in that case and those given in the 
grave-diggers' dialogue, as to suicide by 
drowning, are so striking that there can be 



10 ECCL ESI A S TIC A L LAW 

no question that the writer was familiar with 
the report of the law case. 

Literal extracts from the reported case are 
as follows : 

Serjeant Walsh argued that the act of sui- 
cide consisted of three parts. 

(i.) The imagination, which is a reflection 
or meditation of the mind whether or not it 
is convenient for him to destroy himself, and 
what way it can be done. 

(2.) The resolution,whichisa determination 
of the mind to destroy himself, and to do it 
in that particular way. 

(3.) The perfection, which is the execution 
of what the mind has resolved to do. And 
this perfection consists of two parts, viz : 
the beginning and the end. 

Lord Brown, of the Court, said : 

"Sir James Hales was dead, and how came 
he to his death ? It may be answered by 
drowning — and who drowned him ? Sir James 
Hales — and when did he drown him ? In his 
life time. So that Sir James Hales being 
alive caused Sir James Hales to die ! and the 



IN HAMLET. 11 

act of the living man was the death of the 
dead man. And then for this offence it is 
reasonable to punish the living man who com- 
mitted the offence, and not the dead man. 
But how can he be said to be punished alive 
when the punishment comes after his death." 

Lord Chief Justice Dyer said among the 
things to be considered were : 

"(i.) The quality of the offence of Sir 
James Hales. 

" (2.) To whom the offence is committed. 

" (3.) What shall he forfeit ? Under this 
point the Court said he is adjudged none of 
the members of holy church if he drowned 
himself. 

"Wherefore all the Justices agreed that the 
forfeiture of the goods and chattels real and 
personal of Sir James Hales shall have rela- 
tion to the act done in his life-time, which 
was the cause of his death, viz : the throwing 
himself into the water." 

The grave diggers' dialogue on suicide is 
as follows : 



12 ECCLESIASTICAL LAW 

Act 5, Scene I. 

1ST Grave D. — Is she to be buried in Chris- 
tian burial that wilfully seeks her own sal- 
vation ? 

2D Grave D. — I tell thee she is ; therefore 
make her grave straight ; the crowner hath 
set on her, and finds it christian burial. 

ist Grave D. — How can that be, unless she 
drowned herself in her own defense ? 

2D Grave D. — Why, 'tis found so. 

ist Grave D. — It must be se offendendoj* it 
cannot be else. For here lies the point : if I 
drown myself wittingly, it argues an act ; and 
an act hath three branches ; it is, to act, to 
do, to perform. Argal, she drowned herself 
wittingly. 

2D Grave D. — Nay, but hear you, goodman 
delver. 

ist Grave D.— Give me leave. Here lies the 
water; good; here stands the man ; good. If 
the man go to this water, and drown himself, 
it is, will he, nill he, he goes ; mark you that : 
but, if the water come to him, and drown 
him, he drowns not himself. Argal, he 
that is not guilty of his own death, shortens 
not his own life. 

2D Grave D. — But is this law ? 

ist Grave D. — Ay, marry is't, crowner's 
'quest law. 

2D Grave D. — Will you ha' the truth on't? 
If this had not been a gentlewoman, she 



*A plea of justifiable homicide or self defence. 



IN HAMLET. \% 

should have been buried out of christian burial. 
This scene in the edition of 1603 is as 
follows : 

ist Grave D. — I say no, she ought not to 
be buried in Christian burial. 
2D Grave D. — Why, sir. 
ist Grave D.— Mary,* because she's drown- 
ed. 

2D Grave D. — But did she not drown her- 
self ?f 

ist Grave D— No, that's certain the water 
drown her. 

2D Grave D. — Yea, but it was against her 
will. 

ist Grave D.— No, I deny that, for look 
you, sir, I stand here, if the water came to me I 
drown not myself. But if I go to the water I 
am there drowned. Ergo, I am guilty of my 
own death. 

Y'are gone, y'are gone, sir. 
2D Grave D— 1 but see, she hath Christian 
burial, because she is a great woman. 

ist Grave D. — Mary, more's the pity, that 
great folks should have more authorization 
to hang or drown themselves, more than other 
people. 

ist Grave D.— Why, there thou say 'st; and 
the more pity, that great folks should have 

*Mary was a profane word, used in the same way 
that God and some other sacred names are still pro- 
fanely used. 

fAs to the law of Denmark relating to the burial of 
suicides see post, p. 48, note. 



14 ECCL ESI A S TIC A L LAW 

countenance in this world to drown or hang 
themselves, more than their even Christian." 

The grave was to be made " straight, " that 
is, it was to be made East and West, for 
Christian burial, but in cases of those who 
had not Christian burial the grave was North 
and South, as before stated. 

It is true that the burial is represented as 
taking place in Denmark, as the King and 
Queen and Courtiers were present, but still 
the burial was according to the laws of Eng- 
land and the Established Episcopal Church, 
and not the Roman Catholic burial rites, as 
they and all other dissenting church ceremo- 
nies were not allowed to be used in any parish 
churchyard in England after the Reformation 
and the establishment of the Episcopal 
Church. 

I will now state the law of England as it 
existed at the time that Hamlet was written 
and revised in 1604. This was about the time 
of the revision of the canons of the Church 
of England of 1603 and before the revision 
of the present Book of Common Prayer and 



!N HAMLET. 15 

the rubrics as they now stand. We must 
therefore resort to the old canons, usages 
and ecclesiastical and statute law of Eng- 
land and the Book of Common Prayer then 
in use. 

Although it was after or during the refor- 
mation and under a protestant sovereign, yet 
the distinction between the Episcopal Church 
and the former Roman Catholic Church ser- 
vices were not marked or well defined. The 
Puritans (Presbyterians) were almost as hos- 
tile to many of the tenets and practices of the 
Episcopal Church of England as to the for- 
mer Roman Catholic Church. The Church 
of England, in the reign of Queen Elizabeth, 
although called "protestant, " was in fact and 
substance but little more in that direction 
than had been done in the reigns of Henry 
VIII and Edward VI. The changes made by 
statutes were marked and few in Henry's 
reign, and were more important and essential 
to the future Church of England than any of 
those made in the reign of Queen Elizabeth. 
The Articles of Religion were established by 



16 ECCLESIASTICAL LA W 

law in the reign of Edward VI. A. D. 1553. 
The present form of them was settled in 157 1. 

The canon law up to 1604 remained in full 
force in England as it had been when under 
the Pope of Rome. The statute of 25 Hen- 
ry VIII, Chapter 19, among other things, pro- 
vided that all the canons, constitutions, ordi- 
nances, and synodals provincial being then 
already made and not repugnant to the 
laws of the land or the King's prerogative, 
should still be used and executed. This was 
confirmed by 1 Elizabeth, Chap. 1, A. D. 1558. 

During the reign of Elizabeth there was 
high church and low church practiced to an 
extent never before allowed, and this depen- 
ded upon the opinion and choice of the bishop 
ot the dioeese and of the rector of the parish. 
In fact, the Episcopalians and the Catholics 
and others were required to attend the Par- 
ish Church or did not attend any church, for 
there were no other places for meetings. 
Seats were not placed in churches, until James 
I reign. As an indication of the state of re- 
ligious feeling on the accession of Elizabeth 



IN HAMLET. 17 

to the Crown in 1559 (when Queen Mary 
had held it for the six preceding years, and 
the nation had been received into the Roman 
Catholic Church), of the 9,400 beneficial 
men in England who held under the Roman 
Catholic reign, all took the oath of supremacy 
and retained their places under Elizabeth ex- 
cepting 189; of these last 14 were bishops, 
and 80 were priests. Most of her councillors 
were continued from the reign of Queen 
Mary. The Queen herself was more inclined 
to the practices of the Church of Rome than 
to the Reformed Churches of Calvin and 
Luther. She was crowned by a Roman 
Catholic Bishop according to the Roman 
Catholic ritual. All the bishops in Parlia- 
ment and eight peers voted against the Book 
of Common Prayer adopted in her reign by 
Parliament, for the uniformity of worship in 
England. It was not approved by authority of 
the Church of England in convocation. It was 
far from the Roman Catholic ritual and re- 
quired much less than that which was adopted 
by Parliament and the Church in 1662, and 



18 ECCLESIA S TIC A L LAW 

which is still in use in England and in the 
United States. There was more liberty then 
than now left to the choice of the bishops of 
each diocese as to how far from the Church of 
Rome the ritual and practices could go. 
The statutes of the realm prohibited certain 
practices, but those that were not positively 
forbidden could be followed and usually were 
to the same extent as when England was un- 
der the Church of Rome and Popery gov- 
erned the ritual. The legal ritual was such 
as the most ultra Puritans (Presbyterians) 
could use by only reading the short service 
while the Episcopal Church could have 
nearly the same service as when it was under 
the Church of Rome. It was a concession to 
the Puritans by Parliament to prevent an- 
archy and to restore tranquility in the nation. 
But all concessions by Church or State to 
each other and all laws from the time of Ed- 
ward VI., 1549, when the first Protestant 
prayer book and ritual of the Church of Eng- 
land was adopted and approved jointly by 
authority of the Church in Convocation and 



IN HAMLET. 19 

the state in Parliament until the adoption of 
the present Book of Common Prayer in 1662 
by the like authority, proved unavailing until 
the toleration Act of 1689 by Parliament. 

None other rituals or forms of worships 
had the joint sanction of Church and State, 

The act of uniformity of worships (1 Eli- 
zabeth Ch., 2, A. D. 1558) was virtually only 
to affect the Puritans. It prescribed certain 
penalties upon ministers for not using the 
service according to the Book of Common 
Prayer, and also for using any other service 
in lieu thereof. No part of it could be omit- 
ted, but much more than therein required 
could be used according to the old practices 
in the Church of Rome unless positively 
prohibited by statute. 

No less form or kind of worships than 
thereby prescribed was tolerated or allowed 
in England. The toleration act, allowing 
protestant dissenters certain privileges and 
rights as to other kinds of beliefs and forms 
of worships was not enacted until 1689. In 
Elizabeth's reign Papistry and Puritanism 



20 ECCLES1A S TIC A L LAW 

were both punished as heresies. The rural 
districts were strong in the old faith and 
church rituals, while in the seaport towns 
the new faith taught by Calvin and Luther 
was stronger. 

The punishment which the church meted 
out to suicides still prevailed as it had been 
for centuries before. It is true the rubric in 
the Book of Common Prayer against the use 
of the burial service in cases where the de- 
ceased had laid violent hands on himself was 
not inserted until the year 1662, yet it was in 
force under the old church canons and was 
in effect the same as now. 

Christian burial was denied suicides in all 
parts of England under the canon law. 

A council of Aries, about the middle of 
the fifth century, having pronounced suicide 
to be the effect of " diabolical inspiration," 
a council of Braga, in the following century, 
ordained that no religious rites should be 
celebrated at the tomb of a suicide, and that 
no masses should be said for his soul. 

It was ordained in the sixth century by the 



IN HAMLET. 21 

canon law that no commemoration should be 
made in the Eucharist for such as destroyed 
themselves, neither should their bodies be 
carried out with palms nor have the usual 
service read over them. 

And these provisions, which were repeated 
by later councils, were gradually introduced 
with the canon law into the laws of the Bar- 
barian and of Charlemagne. Thus they were 
spread all over Europe. 

The part of the canon law against suicides 
was taken from the action of the first council 
of Braga, which occurred many years before 
the canon law noticed it. 

" The first ecclesiastical rule which occur- 
reth as to suicide is the 34th canon of the 
first council of Braga, in the year 563, which 
forbids any burial service for those qui viole?i- 
tan sili ipsis infermet mortem. But in Wilkins' 
councils the 5th chapter of the 2d book of 
the Penetential of Egbert, Archbishop of 
York, written about the year A. D. 750 (which 
chapter is plainly taken from the canon of 
Braga), adds this limitation, " If they do it 



22 ECCLESIASTICAL LAW 

by the instigation of the devil." And at p. 
232 the 15th of the canons published in King 
Edgar's time, about the year 960, adds a fur- 
ther limitation. " If they do it voluntarily 
by the instigation of the devil*." (1 Burns, 
Eccles. Law, 265). It will be observed that 
this canon law of Egbert was in the time of 
the Saxon Heptarchy, but it, nevertheless, ap- 
plied to all of England. 

The Decretum of Gratian inserting the 
canon of Braga adds to it " voluntaire." 
(do.) 

The exact language of the canons of Edgar, 
as translated by Wilkins, is as follows : 

" Concerning those who by any fault inflict 
death upon themselves, let there be no com- 
memoration of them in the oblation, or like- 
wise for them who are punished for their 
crimes, nor shall their corpses be carried unto 
the grave with palms." 

" If any shall voluntarily kill himself by 

*(l.) " Instigation of the devil" meant a frenzy 
and not a deliberate self destruction, " with malice 
afore-thought " as a deliberate crime was designa- 
ted in law. 



IN HAMLET. 23 

arms, or by any instigation of the devil, it is 
not permitted that for such a person any 
masses be sung, nor shall his body be put in- 
to the ground with any singing of a psalm, 
nor shall he buried in pure sepulchre*." 

Canons Edgar, i Wilk., 225, 232. 

Johnson, A. D. 740, No. 96, and 963, No. 
24. 

1 Burns' Ecc. Law, 260. 

To the rigid rule of the church there was 
then, as there still is, no exceptions, but the 
law made the decision in a coroner's inquest 
binding and conclusive upon the question; in 
a legal phrase the coroner's inquest was not 
traversable in any Court or place, but must 
be followed by all and every person.f 

* (2.) Pure sepulchre referred to white garments as 
well as other emblems of purity. When persons were 
baptized in the Church of Rome, the recipient received 
a white garment (to be worn for a specified time) and a 
lighted taper placed in his hands as symbols of purity, 
and the light of faith. This custom in the early church 
of representing the faithful in white robes and palms 
of victory is undoubtedly referred to by St. Paul in 
Rev. VII, 9, 14. 

f This is not so in the United States; a decision of a 
coroner's court is not binding or conclusive. An in- 
quest is merely used for the purpose of obtaining evi- 
dence that may be used in a criminal proceeding 



24 BCCLES1A ST/CA L LA IV 

The first grave digger in Hamlet believed 
that if Ophelia had not been a gentle woman 
she would not have Christian burial. The 
second grave-digger promptly answers that 
she is, because the " crowner " (coroner) has 
set upon her and finds that she is to have 
Christian burial. 

By the canon law, whether Ophelia was sane 
or insane, if she deliberately caused her own 
death, she was not entitled to the burial rites 
of the church, for churchmen contended then 
as now that in all cases of suicide the de- 
ceased should be denied the burial rites of 
the church, and the clergy ought not to be 
bound by the decision of the Coroner's jury 
in such cases.* 

The practice was when the coroner deliv- 
ered the custody of the body to the relatives 
and friends, that the same should be buried 

* Coke says he is called coroner or coronator be- 
cause he hath principally to do with pleas of the 
crown, or such wherein the King is more immediately 
concerned. The office is of equal antiquity with that 
of sheriff. Mention is made of him in a charter of 
King Athelstan, A. D. 905. Forfeiture of personal 
property for a felony was not introduced into the 
English law until the begining of the I2th century. 



IN HAMLET. 26 

by the parish priest in the manner and form 
his discretion and church regulations might 
allow, excepting so far as positive statute law 
compelled him to act. The statute law com- 
pelled him to attend and bury all persons in 
the parish churchyard, and to read or sing 
certain prescribed prayers and portions of 
the bible as prescribed in the act of uniformi- 
ty of worship without regard to the religious 
belief or doctrine of the deceased.* 

The Book of Common Prayer as we have 
it now was not yet settled in many particu- 
lars. It was not until 1603 that the 68th 
canon of the Church of England required 
that the minister (priest) should, when re- 
quested, under a penalty, use the forms of 
burial service as prescribed by the Book of 
Common Prayer. Until then it was left to the 
act of uniformity before mentioned. 

Before the rubrics of 1662 they did not 
exclude the service for suicides, much to the 
dissatisfaction of churchmen and the clergy. 



* Dissenters did not have their own churches and 
burying grounds, until long after Shakespeare's time. 



26 ECCLESIA ST/CAL LA W 

Under the ancient law as well as under the 
39 articles of the church, the decision of the 
coroner's jury, he being a magistrate, must be 
followed by the church as to the voluntary or 
involuntary act of self-destruction. If the 
former was found by the coroner, the body 
was denied the church rites of burial and was 
buried by the coroner according to the local 
custom of the parish. If the latter was 
found, as was the case when the subject was 
deemed insane, then the rites of burial must 
be used by the ministers, but only in the par- 
ish churchyard, under the penalty prescribed 
in the act of uniformity of Elizabeth and 
in the 68th canon of 1603. 

This humiliation of the church authorities 
to the civil authorities was compensated in 
part by the exclusive right of the bis- 
hops to administer upon the goods and chat- 
tels real and personal of a deceased in his 
parish, in all cases where they were not for- 
feited to the Crown. When the coroner's jury 
decided that a suicide was sane, the personal 
property of the deceased was forfeited to the 



IN HAMLET. 27 

Crown the same as on conviction of any other 
felony, and the burial of the body was by the 
coroner generally at cross-roads.* 

This burial at the cross-roads and without 
religious rites, was to give as strong an im- 
pression as possible of a heathen burial, and 
also of a criminal act, for the heathen Teu- 
tons there executed their criminals by sacrifi- 
cing them to the gods on their altars, which 
were mostly at the junction of the cross-roads, 
and the body was pinned to the earth by an 
iron pointed stake, and passers-by would cast 
a stone at it. 

This mode of disposing of the body of 
suicides was an ancient custom brought into 
England by the Saxons, and did not prevail 
in all parts of England and Wales. 

There were three kinds of places of burial 
of suicides that prevailed in England. 

When the church officers performed the 



* Coroner's juries almost always decided that the 
deceased was insane, and therefore there was no for- 
feiture. Perhaps this was influenced by the fact that 
suicides at that time had little or no property to forfeit 
to the Crown — another fact, that if property was forfeit- 
ed, the coroner got no fees. 



28 ECCLESIASTICAL LAW 

burial rites which the law compelled them to 
do, when the coroner's jury had decided the 
suicide to be an insane act, the body was en- 
titled to be buried in the parish churchyard, 
but the canon and statute law allowed the 
place of the grave to be selected there by the 
parish priest, because the freehold of the 
church property is in the rector (priest.) This 
privilege was frequently exercised by priests 
as to the bodies of suicides and others in a 
peculiar manner. In some places the coroner 
buried suicides in the parish churchyard. 
When they were buried in the parish church- 
yard they were placed in the most obscure 
parts of it. 

In many churchyards in the northern parts 
of England may be seen a row of graves on 
the extreme verge of the north side of the 
graveyard, apart from that in which the 
bodies of the inhabitants in general are de- 
posited. Some of the graves do not lie east 
and west as do those who have Christian bu- 
rial. These are occupied by the bodies of 
still-born infants, suicides and excommuni- 



IN HAMLET. 29 

cated persons, and those who it is termed are 
" buried out of the sanctuary," because they 
are not entitled to the full church rites of 
burial and are not in consecrated ground. 

The first grave-digger in Hamlet, when he 
asked if the grave should be made " straight," 
was evidently accustomed to that part of 
England where a suicide's grave was not 
made east and west, as the church stood, and 
as other graves run, but was to be made 
"crooked," or not parallel to them. 

The canon of Edgar before mentioned 
shows that the canying of palms by the 
clerical attendants as emblems of victory at 
funerals was the custom in regular burials in 
England. 

The usual burial ceremonies for those who 
died in the faith in Shakespeare's time were 
more or less imposing or elaborate, according 
to the rank of the deceased. 

The priest leading the funeral cortege fol- 
lowing the corpse carried feet foremost on 
the way to the churchyard, the friends of de- 
ceased carrying rosemary as a token of re- 



30 ECCLESIA S TIC A L LAW 

membrance, the clerks carried five or six 

lighted torches as an emblem of Christian 

faith, of triumph over death by belief in the 

resurrection and immortality, singing psalms 

of victory and peace. This was when the 

procession started from the house where the 

deceased was to be taken to the churchyard. 

This is also alluded to by Gay, who wrote a 

century after Shakespeare lived. 

"To shew their love the neighbors far and near, 
Followed with wistful look the damsel's bier ; 
Sprigged rosemary the lads and lasses bore, 
While dismally the parson walked before." 

It was a special favor to do this for which 
the parson expected to be paid by the friends 
of deceased. 

The legal ritual only required that the 
corpse be met by the priests and clerks in 
their robes at the " church style." 

In the burial of Ophelia the funeral cor- 
tege is first seen by Hamlet in the rural 
churchyard. I will therefore only describe 
the full burial rites in the churchyard at that 
time. 

The priests and clerks in their robes meet 



IN HAMLET. 31 

the funeral cortege at the entrance of the 
churchyard, forewarning of which is given 
by the church bell, and they lead the pro- 
cession in the following order : The cross- 
bearer at the head of the corpse, the offici- 
ating priest at the feet, the person carrying 
the holy water a little behind the officiating 
priest at his right hand, and the other per- 
sons who sing are arranged on each side in 
the order of their church rank, so as to leave 
room for the officiating priest in the middle. 
The four or six torches of wax are lighted and 
given to those who are appointed to carry 
them. The priest going before the corpse, 
all followed by the relatives and friends of 
deceased carrying sprigs of rosemary. In 
this manner they proceed to the grave, 
singing psalms and hymns. When they 
arrive at the grave the bearers lay the 
coffin on the brink of the grave with 
its feet turned towards the east. (The 
coffin is sometimes opened for a view of 
deceased and then the entire top is re- 
moved.) The priest then standing before the 



32 ECCLESIA S TIC A L LAW 

cross with his face turned towards the body 
he sprinkles the corpse (or coffin) thrice with 
holy water without saying anything, and then 
blesses it by a prayer, then an anthem or 
psalm is sung, after which he again sprinkles 
and incenses the body, and also the grave, 
then the friends of deceased (if the coffin is 
open) are allowed to look for the last time 
upon deceased. When the corpse is being 
made ready to be laid into the earth and the 
coffin is lowered into the grave a dirge and 
anthem is sung. Then the holy Eucharist 
is administered. Then after again sprink- 
ling the coffin with holy water and a handful 
of earth is cast upon the coffin by the priest 
in the form of across, he saying the prescribed 
prayer,"and then sprinkling it with holy water, 
an anthem is chanted, and then a prayer said; 
then the relatives and friends of the deceased 
come before the earth is thrown into the 
grave and sprinkle it with holy water sup- 
plied by the priest, and such other emblems 
as custom allows. They all stay until the 
grave has been filled up, the company con- 



IN HAMLET. 33 

dole with the relatives of the deceased, and 
then the bell rings, all return to the church, 
where a requiem mass was (formerly) sung 
and a funeral sermon preached. Sometimes 
the ceremony terminated by the singing of a 
requiem mass at the grave after it was filled 
up. 

The ceremonies at the grave occupied 
several hours time. 

These ceremonies were customary in the 
Roman Catholic Church for many centuries 
before the reformation and were in almost 
general use in the time of Shakespeare, and 
it is still to a considerable extent the cus- 
tom and practice in some of the high 
church dioceses in the Protestant Episcopal 
Church in England. 

It had long been the custom in the Roman 
Catholic Church to have a crucifix carried 
by the priest before the corpse in funeral pro- 
cessions. In the time of Edward VI, A. D. 
1548, there was a statute that forbid the use 
of the crucifix and images in church ser- 
vice ; this was revived in Elizabeth's reign. 



34 ECCLESIASTICAL LAW 

The 21st article of the Episcopal Church 
was also against it. But the cross could be 
and was used, if the priest was willing, at 
funerals in place of the crucifix. 

I will say to our readers in England that 
these practices at funerals in England have 
never been introduced into the United States 
or used here by the Roman Catholic Church, 
or in the Protestant Episcopal Church only to 
the literal extent required in the book of 
Common Prayer or by the Roman Catholic 
Ritual. 

The celebration of the Eucharist (the Lord's 
Supper) at the grave at burials was a common 
practice in the Roman Catholic Church as 
early as the 4th century, and was universal in 
England up to the time of the protestant re- 
formation in Edward VI's reign. The first 
prayer book of Edward required it. The 
second book, A. D. 1552, did not require it. 
When Queen Elizabeth ascended the throne, 
and restored the protestant worship, she was 
not satisfied with the extent of burial service 
required by the act of conformity and the 



IN HAMLET. 35 

Book of Common Prayer, being King Ed- 
ward's second book ; she desired that the 
Eucharist should be generally celebrated at 
the grave at funerals as had been the custom 
in the Roman Catholic Church. The Latin 
version of Elizabeth's Prayer Book issued in 
the second year of her reign required it. This 
was done by her command and recommenda- 
tion. In her Majesty's proclamation she de- 
clares that some things peculiar at the fun- 
erals of Christians she had added and com- 
manded to be used, the act for uniformity set 
forth in the first year of her reign to the con- 
trary notwithstanding. But the English 
authorized version of the Book of Common 
Prayer adopted by Parliament did not require 
it, although it might properly be done in the 
discretion of the bishop of the diocese, or 
the parish priest. It, however, gradually fell 
into disuse, during the reigns succeeding 
Queen Elizabeth. 

It was an ancient custom to crown the de- 
ceased with white flowers and to strew them 
on the corpse, and to place the crown or gar- 



36 ECCLESIASTICAL LAW 

lands on the coffin. The Roman Catholic ritu- 
al recommends it in regard to those who die 
soon after baptism, in token of purity and 
virginity. 

To carry garlands tied with white ribbons 
before the bier of a maiden and to hang them 
over her grave was an old custom, and is still 
the practice in many rural parishes in Eng- 
land. The word " crants " used by Shake- 
speare, is the old Dutch word for a garland or 
wreath, and was retained by the Saxons. A 
word of like sound and meaning is also found 
in the Lowland Scotch, and in the Danish 
and Swedish languages. 

If the funeral occurred when natural flowers 
could not be had, evergreens and artificial 
garlands and wreaths were used for the oc- 
casion. In some places these garlands were 
made of bay leaves and rosemary, and were 
solemnly carried before the corpse next to 
the priest, by one or two maidens dressed in 
white, about the size and age of the deceased 
maiden. These garlands were laid upon the 
grave after burial. 



IN HAMLET. 37 

In some parts of England and Wales, 
(Glamorgan in particular) it is the custom 
when a young couple are to be married their 
ways to the church are strewed with sweet 
scented flowers and evergreens. The bridal 
bed was also covered with flowers. When a 
young unmarried person dies the corpse is 
strewed with flowers, and his or her ways to 
the grave are also strewed with sweet flowers 
and evergreens, and on such occasions it is 
the usual phrase that these persons are going 
to their nuptial beds. When the coffin is 
opened flowers are strewed upon the deceased. 
After the coffin is lowered in the grave flowers 
are again strewed upon it and the sprigs of 
rosemary are thrown upon it or stuck in the 
newly covered grave, and after the burial the 
garlands are laid upon the grave or over it. 

These were the " maiden strewments " 
mentioned by the priest, and was the scatter- 
ing of flowers and herbs in the way to the 
grave, and was not the scattering of flowers 
upon the coffin of deceased. The Queen 



38 ECCLESIASTICAL LA IV 

said of them when she strewed the dead 
Ophelia : 

" Sweets to the sweet, farewell, 
I hoped thou shouldst have been my Hamlet's wife — 
I thought thy bride bed to have decked, sweet maid, 
And not to have strewed thy grave." 

This custom in England is elsewhere 
alluded to by Shakespeare. Queen Catherine 
in Henry VIII. (A 4, S. 2) directs: 
" When I am dead, good wench 

Let me be used with honor, strew me over 
With maiden flowers." 

In "The Maid's Tragedy," by Beaumont 
& Fletcher, describe the capricious melan- 
choly of a broken-hearted girl thus : 

" When she sees a bank 
Stuck full of flowers she with a sigh will tell 
Her servants what a pretty place it were 
To bury lovers in ; and make her maids 
Pluck 'em and strew her over like a corse." 

In a plaintive ditty sung by the melancholy 
Ophelia for her lost Hamlet, she said : 
" White his shroud as the mountain snows, 
Larded all with sweet flowers ; 
Which bewept to the grave did (not)* go, 
With true love showers." 



* This verse is not in edition of 1603, and the word in paren- 
theses in third line is in all except some modern editions. 



IN HAMLET. 39 

In those days it quite became the ambition 
of young maidens to die in spring time. A 
contemporary of Shakespeare, Sir Thomas 
Overbury, describing the " Faire and Happy 
Milkmaid," observes : 

" Thus lives she, and all her care is that she may 
die in the spring time, to have store of flowers stuck 
upon her winding sheet." 

Lighted torches and rosemary were also 
used at weddings. Many ceremonies and 
customs relating to weddings and burials 
that were prescribed or recommended by the 
various rituals and missals of the old English 
Church before the Reformation were con- 
tinued long after, and even to this day some 
of them are retained. The priests and bishops 
who came to England while under the Pope 
introduced into England many wedding and 
burial customs and ceremonies which were 
common in Italy, France and Spain, where 
nearly all of them were educated. 

The custom of strewing flowers upon the 
graves of departed friends is derived from an 



40 ECCLESIASTICAL LAW 

ancient custom and usage in the Roman 
Catholic Church. 

It was an old rule of the church, and was in- 
corporated in the 67th canon in 1603 that 
after a person's death there shall be rung by 
the church bell no more than one short peal, 
and one other before the burial to call the 
assembly together, and one other after the 
burial. 

The burial service required according to 
the laws of England in 1603-4 were very 
brief and simple : 

1. The priest must meet the corpse at 
the church style when the bell rung, and need 
read only that part of the present service be- 
ginning with "I am the resurrection," &c. 

2. He must lead the procession to the 
grave, and when they arrive there and the 
coffin is being made ready to be placed in the 
grave he need say only that part which be- 
gins with " Man that is born of a woman," 
&c. 

3. Then after the coffin is in the grave 
and the earth is being cast upon the coffin by 



IN HAMLET. 41 

some standing by, he need only say that part 
which begins with " Inasmuch as it hath 
pleased," &c, and then say " I heard a 
voice," &c. 

The ringing of the bell again and the other 
parts of the service need only to be done 
after the grave was filled up. 

The place of burial could be selected by 
the parish priest as well as the position of the 
grave in the* churchyard, whether parallel 
to others being east and west and among 
them, or on the north side of the church, 
lying north and south in unsanctified ground. 
The ancient canons of the church allowed 
him to prohibit or allow decorations of the 
corpse and of the grave in the churchyard. 

The law of England prohibited singing 
masses for the soul in all cases. It allowed 
but did not require the singing of psalms, 
nor a requiem to be sung at the grave after 
burial. It also then, as now, allowed incense 
and holy water, and prayers for the souls of 
the dead. 

The statute law required nothing more than 



42 ECCLESIASTICAL LAW 

this, and allowed all else that canon law and 
usage in the various parishes had sanctioned 
and used before. 

Now, in the light of all that has here been 
said on this subject let us turn to Shake- 
speare's description of the burial of Ophelia 
and we will see his sketch of the outlines of 
it in a clearer and brighter light than ever be- 
fore. 

It should be remembered that Ophelia's 
funeral was in a rural district, and that high 
church practices prevailed there, as before 
stated, and that therefore the disgrace of 
withholding the usual church services at 
funerals was more keenly felt by the friends 
and relatives of deceased than if such omis- 
sion was common. 

(Hamlet and Horatio in the churchyard. 
Church bell rings.) [Aside : 

" Here comes the king, 
The queen, the courtiers. Who is this they follow ? 
And with such maimed rites ! This doth betoken 
The corse they follow did, with desperate hand, 
Foredo its own life. 'Twas of some estate : 
Couch we awhile, and mark." 



IN HAMLET. 43 

The funeral cortege was maimed in such 
manner as to show that the deceased did with 
violent hands undo its own life. The maiden 
pall bearers and the carrying of rosemary, 
and the strewing of flowers in the pathway 
by the friends of deceased, virgin crants 
carried before the coffin by the maidens 
showed it to be a deceased maiden. Thus 
they arrived at the entrance of the church- 
yard. The church bell ringing, the parish 
priest was there to meet the corpse as re- 
quired by law. There were no torch bearers, 
no cross bearer, no holy water, no singing. * 

The meager burial services, as required in 
the Book of Common Prayer, are read in a low 
voice, and the procession is allowed to silently 
proceed to the grave, the strewments of 
flowers in the pathway is continued to the 
grave, and the virgin crants are allowed 
there to be placed upon the grave. The 
coffin is placed on the brink of the grave. 



* The Calvinists and Lutherans sung psalms when- 
ever an opportunity was offered. So the absence of 
singing was marked on this occasion. 



44 ECCLESIASTICA L LAW 

Again the low voice of the priest is heard for 
a few minutes, and all stand silently waiting 
for something else. 

No lighted torches — No singing of psalms 
or hymns, no blessing, no sprinkling of holy 
water. No smoking censer. No holy Eucha- 
rist. 

Laertes breaks the silence in a subdued 
voice by asking : " What ceremony else ?" 

No notice is taken of the inquiry by the 
priest. Hamlet says to the priest : " That 
is Laertes, a very noble youth." 

Laertes again asks in a louder tone: " What 
ceremony else ?" 

The priest replies : 

" Her obsequies have been as far enlarged 

As we have warranty. Her death was doubtful. 

And but that great command oversways the order, 

She should in ground unsanctified have lodged 

Until the last Trump ; for charitable prayers 

Shards, flints and pebbles should be thrown upon her." 

The " great command " that ruled the 
order of priests was the statute law of 
England, which recognized the sovereign as 



fN HAMLET. 45 

the head of the church, and the decision of 
the coroner binding upon the church that she 
be entitled to Christian burial. 

The line above quoted fully describes the 
burial of suicides in that part of England 
where the ancient custom prevailed of burial 
at the cross-roads with an iron pointed stake 
driven through the body, to mark the spot, 
and passers by throw flints and stones upon 
it. 

The priest proceeds to remind them of the 
favors he had extended, He says : 

" Yet here she is allowed her virgin crants, 

Her maiden strewments and the bringing home 

Of bell and burial." 

That is all the legal ceremony and those 
not prohibited by the church, and he had 
fulfilled the letter of the law, and rung the 
bell and had given her an honorable place of 
burial and a straight grave. 

Then said Laertes in astonishment: "Must 
there no more be done ?" The priest re- 
plies : " No more be done !" Then he again 



46 ECCLESIASTICAL LAW 

firmly and apologetically adds to assure them 

that it is all over : 

" We should profane the service of the dead 
To sing a requiem and such rest to her, 
As to peace-parted souls." 

Then says the disconsolate Laertes : 

" Lay her in the earth ; 

And from her fair and unpolluted flesh 

May violets spring." 

Then he turns to the priest and says 

sharply : 

" I tell thee, churlish priest, 

A ministering angel shall my sister be, 

When thou liest howling." 

The howling meant crying for mercy. 

Hamlet draws near and sees it is Ophelia, 
and exclaims in mortification and surprise : 
" What, the fair Ophelia ?" 

Then the Queen steps forward and scatters 
flowers in the open coffin and tells her disap- 
pointment and grief. She says : 

" Sweets to the sweet, farewell ! 
I hoped thou shouldst have been my Hamlet's wife ; 
I thought thy bride bed to have decked, fair maid, 
And not t'have strewed thy grave." 



IN HAMLET. 47 

Laertes says of the disgraceful death and 
burial : 

" Oh, treble woe, 
Fall ten times treble on thou cursed head, 
Whose wicked deed thy most ingenious sense 
Deprived thee of." 

The priest does not scatter the earth upon 
the coffin after it is lowered into the grave. 

Then Laertes says desperately in a parox- 
ism of grief and shame : 

' ' Hold off the earth awhile, 

" Till I have caught her once more in my arms." 

(Then he leaps into the grave). Then he 
says to those standing by : 

" Now pile your dust upon the quick and dead. 
Till of this fiat a mountain you have made, 
To o'er top old Pelion or the skyishhead 
Of blue Olympus." 

* * * * * 

In the edition of 1603 it is as follows : 

Ham. — What funeral's this that all the Court 
attends. 
It seems to be some noble parentage. 
Stand by a while. 
Laertes. — What ceremony else, say, what 
ceremony else. 



48 ECCLESIASTICAL LAW 

Priest. — My Lord, we have done all that 
lies in us. 
And more than well the church can tolerate. 
She hath had a dirge sung for her maiden 

soul. 
And but for favor of the king and you. 
She had been buried in the open fields, 
Where now she is allowed Christian burial.* 
Laertes — So I tell thee churlish priest, a 
ministering angel shall my sister be 
when thou liest howling. 
Ham.— The fair Ophelia dead ! 
Queen. — Sweets to the sweet, farewell. 

I had thought to adorn thy bridal bed fair 

maid. 
And not to follow thee unto thy grave. 
Laertes. — Forbear, the earth awhile, sister, 
farewell. 

(Leaps into the open grave.) 

Now pour your earth on Olympus high, 
And make a hill to o'er top old Pelion." 



There is still more subtle points of law 



* This is in accordance with the law of Denmark, 
where the only penalty against suicides is that the 
body is not allowed to be buried in consecrated 
grounds or churchyards. The established church in 
Denmark is Lutheran since 1536, and full Christian 
burial rites are very nearly the same as in the Roman 
Catholic Church. 



IN HAMLET. 49 

governing and adopting all the allusions to 
the laws and customs peculiar to England, in 
Hamlet ; it is this : the well known rule, the' 
" lex fort," prevails, that is, the law of 
England is by law presumed to prevail in 
every other country or place where the case 
arises, unless the contrary is shown by proof. 
Again, the law is presumed by the forum to 
have always been the same as at present, un- 
less some reason appears to the contrary. 
This play of Hamlet was designed to "hold 
the mirror up to nature," and was written 
for an English audience, and was to be 
performed in England; that was the forum 
and the standard for all laws and customs 
as they then existed in England. It was 
not important to the representation when or 
where Hamlet lived ; the forum was, that he 
lived then and there in England at the time 
the play was presented by the actors in their 
usual dress, " to show * * the very age 
and body of the time."* 

There is no hidden cipher in all this that I 

* Hamlet's advice to the players. 



50 ECCLESIA S TIC A L LAW. 

have been telling you about, it is so plain that 
he who runs may read. 

The object of this paper has been to illus- 
trate and to lead to a more complete knowl- 
edge and understanding of the times, places, 
and circumstances under which this play of 
Hamlet was written, and to which it refers; 
by doing this to increase the interest and 
appreciation of this wonderful dramatic de- 
lineation of human life. 



In brief, sir, study what you most affect." 

Taming of The Shrew, I. i. 



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